A divided Trademark Trial and Appeal Board canceled the trademark of the term “redskins” as violative of federal trademark law prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging – – – and was so at the time the trademark was approved.
There’s more about the opinion in Blackhorse v. Pro-Football, Inc. on the Constitutional Law Professors blog here.
At the heart of the issue is whether the term is disparaging and – – – perhaps most importantly – – – who gets to decide. In the majority opinion, this passage is especially pertinent:
Respondent [Pro-Football, Inc.] has introduced evidence that some in the Native American community do not find the term “Redskin” disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term “Redskins” to be disparaging when the respective registrations issued. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.
The substantial composite in this case, according to the evidence, was at least 30% of the Native American population or, as the majority phrased it, “1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990” when the trademark issued.
The meanings of disparagement and offensiveness implicate our ideas of equality, democracy, and language. In an essay, Democracy and Antigone, I wrote about the “dykes on bikes” controversy that ensued when the organization sought to trademark its name and the trademark officer denied it because she found “dyke” was offensive term (and had a dictionary to support it). The trademark office eventually relented. I also wrote about how the Olympics Committee successfully prevented the “Gay Olympics” from using the term “Olympics” because “gay” disparaged the “Olympics” trademark.
Meanings do change. But we all know that. Just as we all know that who decides what meanings matter changes.